APPENDIX 1
Memorandum submitted by the Ministry of
Defence
INTRODUCTION
1. This note provides a brief outline of
the main provisions of the Armed Forces Bill. A fuller account
is given in the explanatory notes published with the Bill.
PART I—CONTINUATION
PROVISIONS
2. Clause 1 allows the Army and Air
Force Acts 1955 and the Naval Discipline Act 1957 to be extended
for a further five years, until the end of 2006, subject to annual
renewal by Order in Council (the continuation orders) before 31
August each year. The Select Committee on the 1976 Armed Forces
Bill rejected a proposal that the system of annual continuation
order debates should be dispensed with, concluding that "the
possibility of debating once a year the Discipline Acts does provide
a safeguard, and does ensure that in any year when there is concern
about their application there may be a debate on that specific
matter". The 1976 Select Committee also recommended that
the Acts should in future be renewed by the summer of any particular
year, in order that "there should be greater flexibility
in timing the debate on any Continuation Order in the future".
These recommendations were accepted by Parliament and reflected
in the 1976 and subsequent Armed Forces Acts. Clause 1 continues
the same procedures.
PART II—POWERS
OF ENTRY,
SEARCH AND
SEIZURE
3. Clauses 2 to 16 propose a regime,
based on that in the Police and Criminal Evidence Act 1984, for
searches in the course of investigations. Among other things,
this:
— Defines the circumstances in which
a Service policeman may stop and search someone subject (or reasonably
believed to be subject) to Service law and Service and certain
other vehicles; and provides residual powers for commanding officers
to exercise these powers, where the timely assistance of a policemen
cannot be secured. In all cases, there have to be reasonable grounds
for suspecting that a search will reveal items such as stolen
goods or controlled drugs.
— Requires a Service policeman to apply
for a warrant from a judicial officer, if he needs to search a
Service person's home or Service living accommodation (of whatever
kind, except places of custody, detention or imprisonment) in
the course of an investigation; and provides a residual power
for a commanding officer to authorise such a search if obtaining
a warrant is not practicable. As under PACE, the power to search
is limited to certain serious offences. Commanding officers will
also have a more limited power to order searches in connection
with such investigations using Service personnel who are not police,
where no Service police are readily available. The Bill makes
the commanding officer's powers subject to retrospective review
by a judicial officer, if anything has been seized during the
search.
— Defines the powers of a Service policeman
(and, in more limited circumstances, others) to enter premises
without a warrant for the purpose of effecting an arrest; and
the powers of search exercisable following arrest.
PART III—TRIAL
AND PUNISHMENT
OF OFFENCES
4. Clause 17 proposes to allow officers
in the Royal Navy to be dealt with summarily, thus bringing the
Royal Navy broadly into line with the other two Services. In all
three Services, the most senior rank that will be capable of being
dealt with summarily will be Lieutenant Colonel or equivalent,
as opposed to Major or equivalent at present. It is intended that
these changes will avoid a number of the more minor alleged offences
having to be tried by court martial. As part of the same package,
it is intended (clause 18) to abolish the naval disciplinary
courts, which were intended to provide a sort of mini-court martial
for junior naval officers charged with minor offences when on
active service. Such a court has not been convened within living
memory, and such matters will be capable of being dealt with summarily
in future.
5. The then Minister of State for the Armed
Forces announced in 1998 the intention to extend eligibility for
court martial membership to warrant officers. This followed a
review set up by the previous administration, prompted by observations
made by the Select Committee on the last Armed Forces Bill. Clause
19 will give effect to this change, detailing the circumstances
in which warrant officers may sit on courts-martial. The principal
limitation is that they will only be able to sit in cases where
the accused is of subordinate rank.
6. Clause 20 also takes powers to
make warrant officers eligible for membership of the Summary Appeal
Courts (SAC) by statutory instrument, should such a change be
considered desirable in the future. This was an issue raised during
discussion on the Armed Forces Discipline Bill, where we took
the view that it would be prudent to see how the SAC operated
and to gain experience of warrant officers as court martial members,
before deciding whether to extend eligibility for SAC membership
to warrant officers.
7. Clause 21 seeks to enable the
Attorney General to ask the Courts-Martial Appeal Court to review
what he considers unduly lenient court martial sentences. This
is intended broadly to reflect his corresponding powers in relation
to sentences of the Crown Court.
8. The Powers of Criminal Courts (Sentencing)
Act 2000 includes provisions for mandatory minimum sentences for
offenders convicted for a second or third time for certain serious
offences. Clause 22 seeks to replicate these provisions
in the Service discipline Acts.
9. Crown Court trial proceedings are exempt
from judicial review in the High Court, the appropriate avenue
for dissatisfaction with them on the part of the defence being
to appeal to the Court of Appeal. There is no equivalent exemption
for court martial trial proceedings, and the Bill will seek to
remedy this, in clause 23.
10. The Service discipline Acts make it
an offence to refuse to produce a document that a court martial
requires as evidence. Clause 24 will extend this provision
so that it also embraces forms of evidence other than documents.
11. It is an offence to fail to attend courts-martial
and similar proceedings as a witness, but there is no means of
ensuring the attendance of witnesses who are not subject to the
Acts. The absence of such witnesses can frustrate the conduct
of a trial, so clause 25 seeks to provide powers to ensure
their attendance. These will enable a judicial officer or judge
advocate to issue a warrant for the arrest of a witness, if satisfied
that the individual concerned is unlikely to attend, or in the
event of actual non-attendance.
12. Clauses 26 to 28 seek to give
Service courts powers to make orders as to costs against parties
or their legal representatives where actions or omissions have
resulted in another party to the case incurring unnecessary expenditure.
These will reflect similar powers available to civilian courts.
13. Clause 29 proposes a number of
minor changes to the procedures for regulating the authorisation
for custody prior to and during trials, including extending these
to proceedings before the Standing Civilian Court.
14. Clause 30 seeks a power to provide
by subordinate legislation for accused to be able to apply for
bail pending the outcome of appeals from Service courts. It is
intended to use this power to make provisions which broadly correspond
to the existing procedures in the civilian criminal justice system.
PART IV—MINISTRY
OF DEFENCE
POLICE
15. Clauses 31 and 32 will seek to
extend the jurisdiction of the Ministry of Defence Police (MDP).
At present, the force has jurisdiction in relation to defence
land, property and personnel within the United Kingdom and its
territorial waters The MDP is also able to operate on land in
the vicinity of defence land where an officer of a local force
has asked for assistance.
16. The intention in the Bill is to clarify
and extend the MDP's jurisdiction, by amending the Ministry of
Defence Police Act 1987. It would:
— Replace the existing power to act
on land in the vicinity of defence land in response to a request
from a member of a local force by two separate powers. First,
to act on such land in furtherance of a request for policing assistance
from a chief officer of a local force. This is to allow standing
arrangements to be agreed at a high level under which the MDP
may take on the performance for an agreed period of policing duties
in an area close to defence land. Second, to allow the MDP to
respond to requests for assistance in relation to individual cases
or operations from an individual member of a local police, without
the present restriction limiting this to the vicinity of defence
land.
— Extend the existing jurisdiction
in relation to the alleged commission of offences by defence
personnel to offences against such personnel. An example
of this would be an attempt to bribe defence personnel to disclose
confidential information.
— Empower an MDP officer in uniform
(or having proof of being an MDP officer) to act without a request
from a Home Department police officer, if he reasonably believes
that waiting for such a request would frustrate or jeopardise
the purpose of his action. This would only be permitted where
the MDP officer has reasonable grounds for suspecting that there
has been an offence involving the use or threat of violence or
where he reasonably believes that action is necessary to save
life or prevent injury.
17. The Bill also includes other provisions
intended to facilitate co-operation between the MDP and other
police forces:
— It will provide for assistance to
be given by the MDP to another police force, on the request of
a chief officer, to meet any special demand on its resources.
— It will also provide that MDP officers
serving with another force, for whatever reason, will enjoy the
powers of a constable.
18. The Bill will provide the means of aligning
the MDP's disciplinary procedures as closely as possible with
those of Home Department forces. The present legislation prevents
this, most significantly by reserving to the Secretary of State
responsibility of key decisions on discipline. Although in practice
this is exercised on his behalf, it means that disciplinary decisions
have to be taken within the Ministry of Defence, whereas Home
Department procedures expressly provide for the involvement of
individuals outside a police force or its police authority to
be involved in the disciplinary process.
19. Finally, in respect of the MDP, the
Bill will amend the firearms legislation, to enable potential
recruits to the force to use firearms without a certificate while
they are being assessed under MDP supervision. As part of their
assessment process, potential recruits take a firearms aptitude
test. This involves "possession", which is generally
unlawful without a firearms certificate.
PART V—MISCELLANEOUS
AND GENERAL
20. Clause 33 will provide for a
general order-making power which would allow the Secretary of
State to make for the armed forces equivalent provisions to those
contained in broad areas of future civilian criminal justice legislation
or any existing legislation that it amends. This will enable the
Services' discipline system to keep up with developments in criminal
justice legislation more readily than it is able to at present,
where legislative opportunities for the armed forces are generally
confined to the five-yearly Armed Forces Bills.
21. The areas of criminal legislation which
may be the subject of such equivalent provisions include the investigation
of offences; powers of arrest and detention; the functions of
prosecuting authorities; remand in custody or on bail; the rights
and duties of accused; evidence or procedure in criminal courts;
criminal courts' powers, including sentencing powers. Provisions
relating to these matters may be applied to the armed forces to
the extent appropriate and with any modifications that may be
necessary because of the needs of the Services or differences
in their system.
22. Although the new power will generally
only apply to criminal justice legislation passed in the forthcoming
or subsequent sessions, the Bill includes express provision enabling
us to apply the most recent legislation concerning sentencing
young offenders, which is contained in the Powers of Criminal
Courts (Sentencing) Act 2000.
23. The armed forces' drug testing programmes,
conducted on a random basis, have proved to be a useful tool in
deterring and combating the use of controlled drugs, which have
no place in Service life. There are no equivalent provisions to
allow testing for alcohol, and it would not be appropriate to
seek powers to do this on a random basis, given that alcohol does
not have the same unlawful status as controlled drugs. However,
clauses 34 and 35 seek a power to enable the armed forces
to test for alcohol (or drugs) in certain specified circumstances.
These will be where there has been an incident which has resulted
in, or created the risk of, death, serious injury or serious damage,
and it is considered that persons subject to Service law may have
contributed to the incident or its consequences. Such persons
could then be required to provide breath or urine samples to allow
testing for alcohol or drugs, and it will be an offence to refuse.
The results of such tests will be used to assist in the determination
of the cause of the incident and, in most circumstances, to inform
a subsequent Board of Inquiry in their findings. Although the
test results will be excluded from use in a subsequent Service
prosecution, they may be used as potential evidence in any civil
prosecution, or as a basis for any subsequent Service administrative
action. The underlying intention of the provision is, of course,
to add to the range of measures to safeguard individuals involved
in potentially hazardous duties and to discourage the inappropriate
consumption of alcohol or the use of controlled drugs.
24. The Bill will also propose a number
of miscellaneous, minor and technical changes to the legislation
affecting the armed forces. These are mostly contained in schedule
7, introduced by clause 36 and include proposals to:
— Ensure that the anonymity afforded
in civil and Service proceedings in the UK to the alleged victims
of certain sexual offences is available in Service proceedings
overseas.
— Widen the range of children of Service
personnel who are eligible to be married in Service chapels, to
include sons and step-children, in addition to daughters.
— Remove the anomaly that the bar on
evidence given at Service boards of inquiry being subsequently
used in Service disciplinary proceedings only applies to boards
of inquiry convened by the witness's own Service (the point of
the bar is to encourage candour at the inquiry).
— End the power to make an order under
the Service discipline Acts for compensation for loss against
individuals who have left the Services. The normal basis for claims
(through the civil courts) will remain.
— Re-define the circumstances in which
individuals may not use the redress of complaints procedure, to
include judicial decisions on custody and the outcome of summary
proceedings, where a right of appeal is now available.
— Increase the flexibility in the machinery
for making civilian contractors accompanying the armed forces
overseas subject to the Service discipline Acts.
January 2001
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